OPR Report Timeline
In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer of transparency–deserves further scrutiny in this report. When she presented the report to Holder in August, she apparently recommended that he reopen investigations into torture.
Also, I still think the timing suggests DOJ delayed its release to protect Yoo in the Padilla suit.
January 4, 2008: Padilla sues Yoo.
February 12, 2008: Senators Durbin and Whitehouse request that OPR investigate torture authorizations
February 18, 2008: Marshall Jarrett informs Durbin and Whitehouse that torture authorizations included in OPR investigation of OLC, agrees to share report with them and–possibly–release an unclassified public version
Late December 2008: Draft of OPR submitted, Michael Mukasey and Mark Filip demand that Yoo, Bybee, and Bradbury get to respond
February 14, 2009: Isikoff reports that OPR report came to harsh conclusions of OLC lawyers’ work; reports Mukasey and Filip allowance for lawyer response
February 16, 2009: Whitehouse and Durbin inquire about process used with OPR report
March 6, 2009: Hearing in Padilla-Yoo law suit
March 25, 2009: OPR response (signed by M. Faith Burton, Acting AAG) to Whitehouse and Durbin states Mukasey/Filip comments already integrated, OLC lawyer counsel in process of reviewing report; it doesn’t mention “career prosecutor” review:
When the review and comment [from Yoo, Bybee, and Bradbury’s lawyers] is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the department will determine what disclosures should be made.
The letter backs off Jarrett’s earlier promise to release the report:
In determining appropriate disclosures, we will be mindful of the considerable interest that Congress has previously expressed in connection with this matter and will seek to accommodate the information needs of our oversight committees in response to requests from their chairmen. While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed. We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review.
March 31, 2009: Durbin and Whitehouse reply to OPR letter
April 8, 2009: Holder names Mary Patrice Brown to replace former OPR head, Marshall Jarrett
April 29, 2009: Leahy invites Bybee to testify to Senate Judiciary Committee; Bybee panics in response
May 4, 2009: According to AAG Ronald Welch, deadline for Yoo, Bybee, and Bradbury response to OPR report; on that day, Welch responds to Durbin and Whitehouse laying out the following as “normal” process for OPR reports:
In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings.
The May 4 letter also informed the Senators of the CIA review.
May 6, 2009: WaPo reports OPR report still recommends sanctions against Yoo and Bybee
June 12, 2009: Judge rules Padilla suit can move forward
June 17, 2009: Whitehouse reveals that CIA conducting “substantive comment and classification review”
July 9, 2009: Yoo appeals decision on Padilla suit–and DOJ stops representing Yoo; Miguel Estrada would take on that role
July 12, 2009: Scott Horton reports that reading OPR Report was one thing that convinced Eric Holder to launch criminal review of torture
Prior to August 24, 2009: OPR submits report to Holder, recommends reopening criminal investigation into torture
August 24, 2009: Holder announces criminal investigation, citing (among other things) OPR report
November 16, 2009: Yoo submits opening brief in Padilla suit appeal
November 18, 2009: Holder announces OPR report due out “this month;” Court grants government extension to December 3 to submit amicus brief
November 20, 2009: Padilla requests extension–because of delay in government brief–until January 15
December: Margolis, purportedly reviewing OPR report, out sick (though reports say Yoo’s lawyer making last appeal for changes)
December 3, 2009: DOJ submits amicus brief claiming that OPR can address Padilla’s concerns
December 29, 2009: Yoo starts book publicity
January 18, 2010: Padilla submits response to appeal
January 29, 2010: Klaidman and Isikoff report OPR conclusions have been altered
Thanks EW. Sad state of affairs in DoJ.
So what is the proper next step when one has now become a full-blown cynic?
Just stop even reading the reports of the destruction of our government and the rule of law, so as to avoid the dyspepsia and choler?
Nope. You/we are not off the hook. See this.
Bob in AZ
Padilla’s suit was filed on January 4, 2008, so DOJ was aware of it from the beginning of this timeline.
Yeah, but I don’t think they thought it’d get to discovery.
Will add to the timeline, thanks.
Whitehouse/Leahy should hold a hearing on the report, the day it is released… which could be the 4th of July… They are still studying the report for declassification purposes?
What a bunch of shit.
The report is still in the cover-up stage.
I think you should include this letter from DOJ’s Ron Weich from May 4, 2009 in the timeline, even though Whitehouse is listed in June as revealing the CIA reviewing the report.
Thanks–you’re right. That’s a key one. You did a piece on that letter, didn’t you?
Any idea what rationale they used to give Yoo another bite at the apple after May 4.
Hee hee, a desire from above to have another excuse to exculpate them since the previous attempts did not fully get the job done? Okay, I’ll stop now…..
Silly bmaz. I said “rationale,” not “why they did it.”
I did write a story on the letter. But I have not been able to nail down the rationale. However, from what I have been able to gather late last year is that after Miguel Estrada was hired more responses were filed from Yoo and those continued throughout the year. I don’t recall when Estrada was hired or if it really means anything in relation to the report. Some people I spoke to said it didn’t mean anything.
But I think it’s important to note that Estrada was supposedly able to get in another response to DOJ during the final review stage. This had to do with the fact that Yoo had already argued in his book, War By Other Means, why he didn’t cite Youngstown when he prepared the August 2002 memo and he was given the opportunity by DOJ to file a lengthy response expanding upon the reasons laid out in his book. It’s my understanding that OPR found he violated professional standards for not citing Youngstown and that it has failure to cite it made up one of the reasons he violated professional standards in the original draft.
Agree on all of that.
Though Estrada represented Yoo when he testified before HJC (June 2008, IIRC). So he’s been working with Yoo for some time, though admittedly in a more serious fashion once DOJ backed out of defending him in the Padilla suit (which I guess I should add to teh timeline, as well).
Thanks for that. Also, I don’t think it’s pertinent to the timeline but thought I would mention that in May 2009 there were reports that Holder said the OPR report was supposed to be released that month and this was the time that there were numerous reports stating that the OPR report wouldn’t recommend prosecutions and I believe we had a discussion about that here.
I think there was a NYT report that had some interesting info and I’m trying to locate that.
Why not release the original report with the criminal response of Yoo and the CIA as an appendix?
Which meeting was it that Bybee was able to attend that seemed really inappropriate?
Just cannot forget sitting in the Eric Holder nomination hearings in D.C. and hoping and praying that he meant what he said so many times that I lost count “no one is above the law”…”NO ONE IS ABOVE THE LAW’
I had encouraged a pack of my youngest daughter and her college friends (20-22) to watch these nomination hearings. We discussed how Whitehouse, Leahey, Holder, and so many other Reps used those hollow lines “no one is above the law” during that nomination hearing.
They have watched their friends suffer more consequences for being caught with marijuana than these serious law breakers are suffering. The peasants have one more reason to pile on top of all the other crimes committed during the last eight years to not believe that often repeated hollow statement “no one is above the law” We know this is hogwash. Complete absofuckinglutely hogwash. Do these people care about the clear message they are sending. If you are a peasant and you break the law you will be held accountable (unless your parents can afford to buy the system off). But if you are in the upper ranks of the system and break very serious torture laws you acted in “poor judgment” What a crock of hooey
Hey lawyer folks or EW why is it that David Margolis’s decision that Yoo, Bybee, Addington acted in “poor judgment” rewriting torture laws and trumping the Geneva Convention trumps Holder’s decision?
I really do not want to see any of these thugs role back into any future administrations
http://writ.news.findlaw.com/dean/20061215.html
Refocusing the Impeachment Movement on Administration Officials Below the President and Vice-President:
Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions?
“If the movement to impeach Bush and Cheney, an outcome which simply is not going to happen, were to turn its attention to many of the other civil officers who have been involved in high crimes and misdemeanors, it might be very different. With strong prima facie evidence, the House Judiciary Committee at a minimum would have good reason to at least begin the process, and that in itself could send a powerful message.
While this is all possible in theory, it will only happen in practice if the Democrats have recovered from what CNN’s Candy Crowley called their “wuss” phase, meaning, of course, their lack of backbone. The Republican Congress let Bush, Cheney & Company literally get away with murder and torture. We must all hope that the Democrats have recovered from their spinal problems, and that they will bring the invisible Congress back into play as what it is, and ought to act like: a constitutional co-equal. There would be no better way to do it than to commence impeachment proceedings against any on a potentially very long list of civil officers of the Bush Administration who should be removed from government, and disqualified from future opportunities to misuse government powers. ”
Is this a possibility?
I think too many dems colluded…and as a result…they are “wusses”…”morality wusses”. And this is also why, when Glen Peckerhead, and Bill O Really? say that dems are “weak” and “spineless”, this is why America buys it. There is a kernal of truth in the words…and we all know it. Not that I want to agree with them on ANYTHING. But this is the kernal of truth, and this is why it sticks.
This is also why Obama’s Bipartisan stuff is capital B.S. If he were really being bipartisan…he would not cover this stuff. He would seek consequences and not control the outcomes. He would let the dems who were complicit…fall. This would free those republicans who were not complicit (and there are likely a few)to separate themselves as well. Once the criminal behavior came out, those who did not participate would be free…of supporting the party, lock stock and barrel. This would give them the ability to step out of the chains. He says he’s bipartisan…but he’s really not. And the bad guys know this better than the good guys do. Obama is simply using “bipartisanship” as the “cover” for his choices.
Example: Little brother smokes meth with Big Brother. Big brother steals and little brother sees it. Little brother says “I am going to tell”. Big Brother says “no you aren’t or I’ll tell that you smoked meth”. Little brother says “Okay, I won’t tell, but the only reason I am not going to tell is because I love you so much and I don’t want you to get in trouble”. Big brother knows this decision has nothing to do with love. (bipartisanship).
There is only one path that works here…we cannot change what we don’t accept. We as a nation have to face the consequences.
Or self-policing is an abject failure…
http://www.crimeandfederalism.com/2009/09/dojs-office-of-professional-responsibility-protecting-its-own.html
Absolute power corrupts absolutely. Without doubt.
Someone please tell PBO this. Well said, wavpeac !
Progressive Democrats of America has an “Issue Oriented Team” dedicated to this idea, in collaboration with David Swanson and the National Impeachment Resource Center.
Thanks for the link to the John Dean article; that should help breathe some life back into this movement.
Bob in AZ
No wonder Rahm and Holder don’t want Dawn Johnsen at the DoJ.
“no one is above the law” Hogwash! The peasants know better
ot
U.S. Examines Whether Blackwater Tried Bribery
http://www.nytimes.com/2010/02/01/world/middleeast/01blackwater.html
Will probably be written off as just more of that “poor judgment” virus going around. Unable to be treated.
Much appreciated effort, EW, as always!
EW – something you might want to add to the timeline is that it was around July 17, 2009
http://www.newstin.com/tag/us/133642130
(very shortly after the Horton piece that the OPR report was, in part, what was prompting Holder to look at the criminal aspects) that Yoo ditched his DOJ counsel and went with Estrada as his private counsel.
DOJ agreed to pay all of his defense fees using outside counsel, though, so they have a direct pecuniary interest in the outcome of the motions to dismiss/summary judgement/appellate aspects of that litigation. Gibson Dunn isn’t usually a cheap option.
There’s also the fact that Mary Hampton Mason, who argued for DOJ’s/Padilla’s position in the March hearing is also one of the lawyers who directly participated in having the Arar and el-Masri suits dismissed for “states secrets” despite the existence of the Executive Order requiring that no criminal activity be classified. I’m guessing if you participated in having two kidnap to torture suits dismissed and the underlying torture conspiracies in the Exec and DOJ covered up, you might have kind of a personal interest in making sure Yoo walks as well. Not too surprising that they’ve stayed on as Amicus when you look at how involved not only OLC, but DAG, AG, senior DOJ main justice lawyers, Crim Div, Senior Trial lawyers, appellate div, etc. have all been.
But it’s especially interesting that DOJ takes on the financial responsiblity for Yoo’s lawsuit, then says that a lawsuit isn’t appropriate, then issues an OPR that exonerates him (to bolster the argument that the litigation they are paying for should be dismissed)
(It doesn’t hurt that such a position – rewritten by someone outside of OPR, will also rebound to the benefit of a bunch of other lawyers in DOJ outside of OLC and OPR – trial lawyers and appellate lawyers and main justice lawyers that Margolis has worked with for year and who, while not penning the torture memos, have been involved in a slew of activities taht all come under scruting if you do begin to hold lawyers accountable for participation in torture soliciation and cover up of torture or other Exec branch crime – like the lawyers how have misled the courts in much of the GITMO litigation and who have invoked state secrets in the Arar an el-Masri litigation despite the underlying criminal acts, etc. It would be kind of interesting if someone could require under oath testimony from Margolis of how much he was aware of himself while all the torture solicitation and torture cases have been pending – there’s no way IMO someone like him was completely out of the loop on the torture programs or illegal wiretap programs until about nowish, so how can anyone know what personal interest he might have – a determination that lawyers who penned the memos walk pretty much slams the door on pursuing those who had other knowledge and let lies go through to the courts and congress without ever fulfilling their prof responsiblities to correct the record.)
fwiw
Edited to add – cross posted with your and Jason’s discussion re: adding this date. Sorry
Just added that.
It was July 9, so actually before that Horton piece.
Yeah, that is kind of what I was trying to get at the other night (slightly in the post, more so in comments). It is inconceivable to me that Holder thinks it hunky dory to take the considered and investigation supported work product of the ostensibly marginally independent OPR and then give it to Margolis, who is fundamentally interested and conflicted to carve it up and alter it after getting the one sided input of the targets’ lawyers. This is pure bullshit.
Yeah – this is oversimplified and very different in many ways, but for an example can you imagine something like the Broadcom/Qualcomm case
http://danmichaluk.files.wordpress.com/2008/01/qualcomm_doc200800107.pdf
and Day Casbeer Madrid and Batchelder filing an intervention with the court telling the Judge – “hey no sweatsies, we happen to have a Prof Ethics committee and they are going to look into this, so never you mind your pretty little head over it”
Can you imagine the DOJ if it was going after an attorney who was complicit in a client’s malfeasance and that attorney’s law firm piped up with “well, golly, we have this nifty prof ethics committee – why don’t you just lets us inhouse the review and we’ll get back with ya if we find our guys did anything wrong”
(My bold)
Now there’s a chunk of logic just waiting for the public to understand.
Thank you Mary.
Like the Brits, maybe we should have Commissions…
Everthing else we do is covering our arse, and protecting the family jewels.
I first thought of the OPR overlay in IG reports as a sortof onside kick in the 4th quarter; squib; open process. Then noticed a respected government theory expert*s reminder in a BU Law Review article last year, of a neat expression invented by CharlieSavage, OLC as ratchet, which advances the unitary executive inexorably; 105 KB. I worry that one eventuality might be letting Olc*s responsibilities devolve to an outsourcing Opr complemented by simply letting the unitary executive conduct the librarian research behind the ac privilege doors of White House counsel*s bailiwick. I think Holder could have a stake in such outcomes.
It was fun, as well, to review the cowboying of Ch. Justice Rehnquist in the Dames and Moore case proffering a citation from Justice Jackson in Youngstown Sheet and Tube, Rehnquist thereat echoing Jackson*s characterization of executive privilege as nearly incontemplable by the mere judiciary:…(Rehnquist quoting Jackson:) ** [a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (concurring opinion).** Dames and Moore v Regan 453 US 654 (1981). [90 KB]
I appreciate the timeline, and its utilitarian links.
I think you make a pretty good case that the timing re the release of the OPR report and the Padilla suite are inextricably linked.
I think that you may wish to add to the timeline a July 6, 2008 report by the LA Times regarding a new policy by David Margolis to withhold summaries of the OPR ethics reviews, a change from previous DoJ policy. I noted it in my Seminal/FDL diary the other day, and Scott Horton notes it today.
From the L.A. Times story:
You note that in May 2009, AAG Welch states:
In fact, this does not seem to be a proper representation of what went on in the Department. Previously, summaries generally released, not only “under some circumstances”, but after early or mid 2008, they were not (I’d like to know the exact date Margolis implemented the change).
Again, I’m not sure how all this adds to the picture, but I believe it shows Margolis may have already been involved early in trying to suppress negative information, and two, that the statements of policy and procedures within DoJ are not consistent. (You noted, for instance, that Burton’s reply to Whitehouse and Durbin never mentions the review by a “career prosecutor”.)
Obama is now saying that while addressing national budget issues, “we have to address the irresponsibility that lead to [this crisis]”. (Video)
It would be nice if he would adopt the same policy with respect to Bush war crimes.
Bob in AZ
It’s probably also worth noting that the ACLU filed suit on January 22 of this year, seeking to have the OPR report released. Isikoff then had the leak on the change exactly a week later.
Just a note that the ACLU first filed it’s FOIA request for the OPR report on Dec. 4, albeit it quietly and they didn’t make an announcement about it, when it became clear that the report would not be released in the time frame Holder said. They filed again in January because the DOJ never responded to the earlier request.
My bet is that Holder doesn’t prosecute anybody for torture, because he’s scared stiff that bringing charges against any one of the perpetrators would open a big, ugly can of worms. Anyone being charged with a serious human rights crime would try to pass the buck up the chain of command, and Holder clearly doesn’t want to go there. They are all going to go free. But we’re the greatest nation on earth, right?
And, perhaps it would set precedent for prosecution down the line-after this administration is gone.
Ergo, should offenses be incurred now, precedent to prosecute would be in place.
Just a thought…
@bobschacht
Thank you for that. My comment was a bit rhetorical. Nonetheless, since the election of the ‘opposition’, in the person of President Obama, this last time around, the futility level seems to have risen significantly.
Why would anyone expect a Republican administration like Obama’s to go after members of a previous Republican administration?
Hey…….I’ll bet that you people throw really good parties every year to celebrate 9/11.
see link below.
http://psychology.about.com/od/theoriesofpersonality/ss/defensemech_5.htm
’nuff said?
No. The Republicans, the Military supply companies, the Telcos, the Media, etc., throw really good parties every year to celebrate 9/11. Do you remember how the Republicans replayed 9/11 footage during the 2004 election?
Should or will the Durham grand jury look at any of the OPR report in its investigation ? What can we do collectively to help Sen Durbin and Whitehouse keep the pressure on the DOJ to release the full OPR report without it being scrubbed by torture enablers re Margolis?
It is well outside of Durham’s assigned scope as I understand it.